Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1887-12-06

|
SnEinia, whose officers they are, juris-
Mction 10 entertain which is denied by
w. .ue eleventh amendment 10 the Constiiu-
1on. 1t must be regarded as q settled
uoctrlne of this court, established by it's
recent decisions, that tho question
whether suit is within the prohibition
| OF the eleventh amendment is not always
TO be determined by reference 10 the
nominal parties on record"
Justice Matthews then reviews care
iuily and in detail the decisions of the
court IN the cases relied upon by the
counsel for the bondholders to show that
The suit is not within tho prohibition OF
The eleventh amendment, aud shows in
what respects such cases differ from the
cases of the petitioners.
kesuming he says: II is therefore
not conclusive Of the principal question
IN this case. The State OF Virginia is
not namod os q party defendant. Whe-
Their II Is the actual party in the sense of
the prohibition of the Constitution must
be determined by consideration of the
nature OF the case as presented on the
whole record.
The substantial averments Of the bill
are-first, that the complainants were
owners Of 100000 worth of tax-receiva-
bile coupons Of Virginia, for which they
had paid over $50, 600; second, that they
have sold $4,000 of that amount for
| SD, 900 or moro TO the taxpayers of Vir-
/ Rinia, who have rendered the same to
the proper State officials in payment of
their taxes but that said officers have
refused to receive the same; third,
that If the officers OF the State
are permitted to enforce the act Of May
II, 1887, the compliments will be una
able TO sell the remaining $50, 600 of
their coupons to taxpayers OF that State
| at any price, and thus their entire pro-
perry in the same will be destroyed /;
fourth, that the act OF May II, 1887, is I'M
constitutional and void because itimpairs
the obligation of the contract OF the
State Of Virginia by which it agreed to
receive coupons cut from its bonds in
payment of debts, demands, and taxes
/ due to ii.
The particulars in which this contract
is alleged to be violated by the provisions
of that act are-first, in tie disregard of
! the tenders of tax.receivable coupons
made by taxpayers in payment Of taxes.
The act OF the General Assembly pc
remptorily requires the action at law to
! be brought in the name of the State of
Virginia against all such taxpayers as
are delinquent second, because in the
trial OF such action it is required that the
I defendant shall not only prove the fact
of the tender but the genuineness of the
coupons rendered third, that as a part
of that proof he is required to produce
the bond itself from which such coupon
is said to have been cut and fourth, that
he is not permitted to introduce expert
testimony to prove the genuineness of
the coupons.
The prayer of the bill is that the At
torney. General of Virginia and Com
monwealth's attorneys for the counties
of the State be restrained by Injunction
from commencing and prosecuting any
suits under the act of May II, 1887, for
the recovery of taxes against the parties
alleged to be delinquent, but who, in
fact, have rendered tax-receivable cou-
pons in payment Of taxes due. 1t
is TO be observed that the only
personal act on the part Of the
petitioners sought to be explained
by the original order of June 6, 1887,
is the bringing of any suit under the act
of May II, 1887, against any person
who had rendered tax-receiyable cou-
pOns in payment of taxes due to the
State of Virginia. Any such suit must
by statute be brought in the name of the
State and for its use. 1t is immaterial,
in our opinion, to consider matters
which are alleged in respect to the course
and conduct of such suit after It's insti-
tuition 10y reason of the provisions CON
tanned in other acts Of the General
Assembly restricting the mode OF proof
of the commences OF coupons.
=
If a suit may be rightfully brought at
all 10y Stnte to recover judgment for
taxes IN such cases, certainly there Is no.
thing in these provisions that violates
any legal or contract rights of the party
sued if he defends the action on the
ground of lawful tender Of payment He
must of course plead the tender, and
may rightfully be required to bring into
court the tender alleged to have been
made under the issue upon this plea.
| The burden is upon the defendant Of
proving the truth of its allegation. What
! Stall be the amount and kind Of proof
necessary to establish the defence involves
questions Of law which can only be
raised and decided in the course Of the
trial. Their determination is for the
court where the trial is to be had. Ii IN
pursuance of other acts OF the General
Assembly the contract rights of the de-
PENDANT as taxpayer having rendered
/ tax-recelvable coupons are denied TO him
/ i'm that trial by reason OF the require
mcnts in regard TO the nature and guam
titv of proof as to the commences OF
commons the errors of law thus COM
mitted can only be remedied according to
the common course of Judicial proceed
ings by a writ of error. which, if 1t would
present Federal question, might ulti-
matelv be sued ont IN this court. BUTT
is not to be assumed in advance either
that such questions will arise or that II
they arise that they will be enormously
decided. The question therefore Is mar
rowed 10 the single inquiry OF the eqmta-
BILE rights OF the complainants to enloin
the petitioners against bringing any
such suits at law. 1t seems 10 be sup
posed in the argument that the rights OF
tax payers in Virginia who have rendered
tax receivable coupons in payment OF
their taxes to the proper collecting OIL.
GERS rests upon the proposition that
such tender is in law the pay
ment of taxes, 50 as to extinguish all
claims for them on the part of the State.
This proposition is said TO be justified by
language of tins court in the case OF
: Poindexter against Greenhow.
There is, however, in that opinion
nothing 10 indicate that the party
making the tender was relieved from
the operation Of the rule Of law making
it necessary TO keep it good, or that sub,
seauent action at law or recovery Of
taxes would be unlawful-reservmg, o.
course, in such case the admitted right
, of the defendant to plead the fact Of hi;
{ tender and bring it into court in pur
, suance of the usual practice in suci
, cases as defence. IL follows. therefore
In the present case that the personal &C
of the petitioners sought to be restrained